United States v. Martinez-Mendoza

169 F. App'x 357

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006

Charles R. Fulbruge III Clerk No. 05-40916 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA MARICELA MARTINEZ-MENDOZA, also known as Cindy Lou Alvarez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-92-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Maria Maricela Martinez-Mendoza appeals her sentence under

8 U.S.C. § 1326 for illegal reentry into the United States after

having been deported. Martinez-Mendoza argues that the “felony”

and “aggravated felony” provisions of § 1326(b) are

unconstitutional. This challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998). Although

Martinez-Mendoza contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 05-40916 -2-

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding. See United States

v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005). Martinez-Mendoza properly concedes that her

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but she raises it here to preserve it for further

review.

AFFIRMED.